Richards v. Orr

• Decision Date: 18 December 1902
• Citation: 92 N.W. 655,118 Iowa 724
• Parties: JOHN W. RICHARDS, Trustee, Appellant, v. M. A. ORR AND M. V. ORR
• Court: Iowa Supreme Court

92 N.W. 655

118 Iowa 724

JOHN W. RICHARDS, Trustee, Appellant, v. M. A. ORR AND M. V. ORR

Supreme Court of Iowa, Des Moines

December 18, 1902

Appeal from Clarke District Court.--HON. H. M. TOWNER. Judge.

THE plaintiff recovered two judgments against defendant Martin V Orr February 13, 1900, and Jedd Knotts held another, rendered December 6, 1898. Actions on each of these to subject land in the name of Orr's wife to their payment were begun March 7, 1900, and afterwards consolidated. Upon hearing the petitions were dismissed, and plaintiff appeals.

Affirmed.

Temple Hardinger & Temple for appellant.

A. B Miller and Jamison & Park for appellees.

OPINION

LADD, C. J.

For many years prior to June 1, 1897, Martin V. Orr had owned and occupied with his family two hundred and forty acres of land in Clarke county. On that day he sold it, and applied all the proceeds except $ 1,700 to the payment of his indebtedness to others than plaintiff. With this sum he purchased another farm of one hundred and forty-seven acres February 14, 1898, taking title in the name of his wife, M. A. Orr, who executed a mortgage of $ 1,400 thereon to secure payment of the balance of the purchase price. It is agreed that the forty acres of the first farm occupied as a homestead was worth the $ 1,700 invested in the second farm, and that one forty of the latter is similarly occupied by defendants, though its value is not disclosed. The debts on which plaintiff's judgments were rendered accrued while the husband owned the two hundred and forty acres. He is now insolvent, and recourse is sought against the land purchased in the name of his wife.

The precise question for consideration is thus stipulated by the parties: "The contention of the said Martin V. Orr and wife being that the said tract of land, having been purchased with the proceeds of the homestead, is entirely exempt from execution in the hands of the said M. A. Orr. The contention of the various plaintiffs being that the land, the one hundred and forty-seven acres, is to be subjected to the various judgments, reserving to the said M. V. Orr and wife the above-described forty acres of land, as their homestead, and agreeing that the said mortgage shall be first paid out of the land remaining; their contention being to subject whatever equity there may be in such remainder to the satisfaction of their judgments." This is tantamount to an admission on the part of plaintiff that the first farm was sold with the intention of reinvesting in another, to be used as a homestead, and that from the money derived therefrom the second farm was bought. On no other theory could the question submitted for decision have arisen from the facts stipulated. The money was in fact so used. The parties recognized Orr's purpose to so use it. Their arguments are on this theory, and they ought not to be permitted now to question whether such intention existed.

II. Appellant first urges that, in view of the change made in the Code, an entirely new homestead could not have been acquired by Orr. Section 2981 of the Code reads: "The owner may, from time to time, change the limits of the homestead by changing the metes and bounds, as well as the record of the plat and description, or vacate it, but such changes shall not prejudice conveyances or liens made or created previously thereto, and no such change of the entire homestead, made without the concurrence of the husband or wife, shall affect his or her rights, or those of the children. The new homestead, to the extent in value of the old, is exempt from execution in all cases where the old or former one would have been." A comparison indicates that this includes sections 2000 and 2001 of the Code of 1873, and that the former is copied verbatim into it, save that the clause "or may change it entirely" after the word "description" is omitted, and in lieu thereof "or vacate it" inserted. The object of this slight change is not easy to understand. The probable reason for it is that the right to make an entire change of homestead is reasonably to be inferred from the language of the statute preceding the omitted clause. In view of what follows, in which such right is expressly recognized, we think this is true, and that the meaning of the statute is the same as before the elimination of the clause quoted.

III. As the former homestead was worth $ 1,700, the husband had the right to retain that sum for the purchase of a new homestead. Manufacturing Co. v. Bjelland, 97 Iowa 637; Butler v. Nelson, 72 Iowa 732, 32 N.W. 399; White v. Kinley, 92 Iowa 598, 61 N.W. 176. The money was held for a reasonable time only before buying the second farm, and was, therefore, exempt in his hands from the payment of his debts. State v. Geddis ...